AlterNet.org: Scott Hortonhttp://www.alternet.org/authors/scott-horton
enHow the CIA Went off the Rails on Torture and Kidnapping, and No One Is Responsiblehttp://www.alternet.org/news-amp-politics/unbearable-lightness-being-cia-general-counsel
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">Former CIA counsel John Rizzo&#039;s book, &#039;Company Man&#039; reveals an astonishing capacity for denial.</div></div></div><!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
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<!--smart_paging_autop_filter--><p>In the months following 9/11, it seems Washington just couldn’t say “no” to the CIA. The agency’s budget shot through the ceiling. Suddenly the CIA not only commanded private armies, it even had a state-of-the-art air force! Between 2006-2007, the CIA drove a proxy war, mobilizing Ethiopia’s army to invade Somalia. It was perhaps the most audacious war the CIA ever triggered. But it hardly raised a stir in Washington, where reinvigorated secrecy ensured that hardly anyone knew about it — and where to this day few analysts even understand what the CIA’s little war, in which thousands of innocent civilians perished, was about. The CIA also bore core responsibility for a nine-year-long drone war in Pakistan: 300 strikes with more than 3,000 fatalities, almost all of this in an area that U.S. military strategists describe as the core of the battlefield in the current war. It also ran, jointly with the military, drone campaigns in Yemen and Somalia. None of this is what the authors of the National Security Act had in mind with the words “covert operation.” In fact, virtually the only people in the world from whom these activities were kept secret were American voters.</p><p>Throughout this period, the dapper and good-natured John Rizzo was the CIA’s senior career lawyer. One would hope to find in his memoir a deep account of the policy battles that led to the CIA’s transformation, and particularly the legal issues. There is no other time in American history when the public has been riveted by legal policy issues as luridly appealing as those that emerged in 2004-2007. Gruesome accounts of homicide and torture in secret prisons run by the American government rocked the world. The scandal opened with now-iconic photographs from Abu Ghraib, and spread as stories emerged from Bagram, Camp Nama, the CIA’s Salt Pit prison north of Kabul, its secret prison near Rabat, Morocco, and Guantánamo. President Bush insisted that “we do not torture.” But an avalanche of secret U.S. legal documents quickly showed otherwise.</p><p>John Rizzo was at the center of this storm.</p><p>"<a href="http://www.amazon.com/Company-Man-Thirty-Controversy-Crisis/dp/1451673930">Company Man</a>" offers an interesting collection of vignettes from a 35-year career in the agency, but its essence is a rationalization of the CIA’s decision to operate black sites and use torture. Rizzo chronicles the steps that led to these decisions and then to back away from them. We discover, for instance, as John Kiriakou first revealed, that the key decisions about the use of waterboarding, mock burial, the cold cell, longtime-standing, sleep deprivation and similar techniques, were taken by the CIA both to the Justice Department’s Office of Legal Counsel (OLC) and to the White House. They were ultimately reviewed and approved by the National Security Council (NSC) Principals Committee (consisting of key cabinet officers, the national security advisor, the president and vice president). Only two members of the NSC openly voiced reservations: Condoleezza Rice didn’t like enforced nudity. Colin Powell objected to sleep deprivation. (Kiriakou, a former CIA case officer and analyst, is currently serving a prison term for what he revealed.)</p><p>Donald Rumsfeld, who once stormed out of a party when asked about war crimes, didn’t want to be in these meetings. John Ashcroft was “mostly silent.” But Dick Cheney stood tall for torture and was a forceful dissenter from President Bush’s late 2006 decision to eliminate it. One curiosity: in his recent biography, Bush proudly took responsibility for the use of the “enhanced interrogation techniques,” but Rizzo doesn’t recall that Bush was ever actually briefed on them.</p><p>Rizzo makes clear that going into this process he had one key worry. It was never whether the techniques were legal or moral. Rather it was how he could protect CIA personnel from the risk of prosecution at some point in the future. The strategy he developed to accomplish this reveals Rizzo as a consummate Beltway insider. By involving the White House at the highest level in the decision, he ensured that accountability would, if pursued, have to reach to the very top of the government. Federal prosecutors would of course find it impossible to open a criminal inquiry into the entire National Security Council, particularly with the attorney general personally blessing the whole process. And by securing opinions from OLC, Rizzo was effectively securing a get-out-of-jail-free card for his team — ensuring that no one at Justice would dare bring charges against them. We see how well this strategy worked later on, when Attorney General Eric Holder appointed a special prosecutor to examine a number of cases flagged by a CIA inspector general. The evidence was copious, but the prosecutor declined to press charges in any of the 101 cases, including those involving homicide. Any other decision would have led to the top. All the way to the top.</p><p>Historians looking at Rizzo’s account will have to exercise caution on some elements. His style, often simple and frank, becomes bitter, defensive and occasionally downright deceptive when torture techniques are on the table. Rizzo is unstinting in his testimonials to everyone up his chain of command, but has a noticeable disdain for anyone who talks about “torture.” Hence, John McCain “gave me serious pause about his temperament,” Ron Wyden was “a foe who could not be appeased,” Dianne Feinstein was “not courteous,” and Rizzo can muster only contempt for the ACLU, human rights groups, journalists, U.N. rapporteurs and “academic dilettantes” who “write with indignation” about torture and deaths in CIA detention camps. </p><p>According to Rizzo “every, and I mean every” CIA employee involved in these programs “believed in it wholeheartedly and unswervingly.” Given the self-selective nature of the programs, it’s hardly surprising that those involved in them would persuade themselves of benefits, but the appearance of books and articles by participants who believe the programs were corrupt, immoral and ineffective (CIA agents Glenn Carle and Sabrina de Sousa, to cite two) suggest Rizzo’s inability to take a head count.</p><p>Rizzo insists that the CIA “wanted no part of torture” which it had “never countenanced, much less facilitated.” He justifies this by claiming that waterboarding a prisoner more than a hundred times, putting a prisoner with a fear of insects in a box with insects, staging a mock burial, extended sleep deprivation, hypothermia and repeated combinations of these techniques never raised a serious question of torture — because Rizzo had an OLC opinion to the contrary in his pocket. The fact that the authors of that opinion knew nothing on the subject, that they had been promised judicial appointments and promotions for issuing it, that for the 50 years before and the eight years after these decisions, the Justice Department was very clear that these techniques were either torture or cruel, inhuman and degrading treatment not permitted by U.S. law — all that is ignored. Rizzo similarly sidesteps the CIA’s now notorious proxy-detention regimes set up in Morocco, Libya, Somalia and Egypt, where torture still more gruesome was practiced. Rizzo’s penchant for wordplay starts from the first pages of the book. Being called before a grand jury or congressional oversight panel to answer questions about the black site program is “torture.” On the other hand, waterboarding someone more than a hundred times is just an “enhanced interrogation technique,” and it is apparently insulting to the CIA as an institution to call it “torture.” </p><p>The most surprising aspect of Rizzo’s book is just how easy it is to be a CIA lawyer. Are CIA agents violating the law of a foreign nation? “We rather expect they do, all the time,” he tells one audience. No need even to worry about it. Violations of foreign treaties and covenants? Rizzo seems to believe that if the CIA should worry about it, the State Department or Justice Department will tell them. If there’s a question, ask them for guidance or an opinion. Why fret about it? Instead, we learn that the CIA lawyer’s lot really focuses heavily on domestic law, especially federal rules concerning the use of appropriated funds, specific congressional limitations on operations, and the art of drafting national security findings. A prisoner being tortured to death in Afghanistan is not really his worry — the DOJ will handle that, or more likely, bury it. But a senior CIA agent destroying tapes that are sought in a pending court case — now that’s a nightmare.</p><p>Rizzo supposes that nothing much of consequence to him happens outside the Beltway. The problem with disclosure of the use of torture techniques, the operation of black sites, the sweeping use of drones are all problems within the American political and legal system — public ire, congressional hearings, budget challenges, pressure to discipline employees, confirmation battles. There hardly even seems to be a world beyond the Beltway. But this points to the amazing shortsightedness of this book and the world it portrays.</p><p>In Italy, a court in Milan convicts 26 CIA agents and persons working with them for kidnapping, over their “snatch” operation targeting an Egyptian cleric who was already the subject of an Italian criminal justice probe. Their prisoner was whisked away, using a U.S. Air Force Base, to Egypt, where he was tortured through a CIA proxy-detention program. The convictions are sustained on appeal, even as the U.S. attempts to protect the CIA’s station chief in Rome with a claim of diplomatic immunity.</p><p>In Poland, criminal probes continue to identify CIA agents who set up a black site at a villa in Stare Kiejkuty, in the lake district three hours north of Warsaw, a CIA outpost that Rizzo once visited. Arrest warrants are issued for the CIA personnel involved, criminal charges are opened against their Polish collaborators.</p><p>Across the frontier, in Lithuania, another CIA black site is exposed and investigated by civil-rights activists. In February a court in Vilnius issued a mandate to the prosecutors to open a criminal probe of torture that may have occurred in that black site.</p><p>In Strasbourg, Europe’s highest court found an innocent German greengrocer had been abducted and tortured by the CIA in Macedonia in a case of mistaken identity. The court cited and chided the Macedonian authorities for failing to open a criminal probe and pursue the perpetrators — now high-ranking CIA officials, including the head of the agency’s counterterrorism center.</p><p>The prosecutors in all these cases, and in other cases pending in Spain, the U.K. and Australia, trade notes tracking the CIA personnel involved, their pseudonyms, their use of credit cards, frequent-flyer accounts and other data in the expectation of some day making arrests. This leaves the agency personnel unable to leave the United States, facing potentially heavy jail terms — and all at the hands of core U.S. allies who enthusiastically supported the war on terror and previously worked closely with the CIA.</p><p>All of these developments flow from John Rizzo’s legal advice at the CIA, but you will strain to find the most fleeting mention of them in his book. If this book does give us a glimpse into the mind of the CIA lawyer, what it reveals is a capacity for self-denial and willingness to ignore inconvenient truths that indeed define John Rizzo as a “company man.”</p> Mon, 17 Mar 2014 11:43:00 -0700Scott Horton, The Washington Spectator971367 at http://www.alternet.orgNews & PoliticsBooksNews & Politicsciajohn rizzoCompany ManbookNational Security CounsilNSCJustice Department’s Office of Legal CounselOLCThe Stomach-Turning Truth About Bush's Torture Programshttp://www.alternet.org/story/138625/the_stomach-turning_truth_about_bush%27s_torture_programs
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">Obama insists America must &quot;look forward&quot; on the question of torture and accountability, but we&#039;re far from closure.</div></div></div><!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
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<!--smart_paging_autop_filter--><p>In the space of a week, the torture debate in America has been suddenly transformed. The Bush administration left office resting its case on the claim it did not torture. The gruesome photographs from Abu Ghraib, it had said, were the product of “a few bad apples” and not of government policy. But the release of a series of grim documents has laid waste to this defense. The Senate Armed Services Committee’s report—adopted with the support of leading Republicans senators John McCain, John Warner, and Lindsey Graham—has demonstrated step by step how abuses on the ground in Iraq and Afghanistan had their genesis in policy choices made at the pinnacle of the Bush administration. A set of four Justice Department Office of Legal Counsel memoranda from the Bush era has provided a stomach-turning legal justification of the application of specific torture techniques, including waterboarding.</p><p>As public and Congressional calls for appointment of a prosecutor and the creation of a truth commission have proliferated, President Obama stepped in quickly to try to turn down the heat. A commission would not be helpful, he argues, and he has made plain his aversion to any form of criminal law accountability. Republicans, meanwhile, bristle with anger as they attempt to defend against the flood of new information. But, in the end, Obama’s assumption that the torture debate has run its course and that the country can now “move on,” as <a target="_blank" href="http://online.wsj.com/article/SB124052010393349643.html">conservative pundit Peggy Noonan</a> urged, may rest in some serious naïveté: Karl Rove and Dick Cheney have different ideas. They’re convinced that Bush-era torture policy is a promising political product for a party down on its luck. Its success on the political stage is just one more 9/11-style attack away.</p><p>The latest disclosures can best be grouped in terms of the destruction of a series of long-enduring myths and the emergence of some new truths.</p><p><em><strong>The Broken Myths</strong></em></p><ol><li><em>Torture was connected to some “rotten apples,” mostly enlisted personnel from rural Appalachia who were improperly supervised.</em><br /><br /> The Senate Armed Services Committee meticulously documents the abuses that were chronicled at Abu Ghraib, Bagram Air Base, and other sites and links them directly to techniques that were approved by Secretary of Defense Donald Rumsfeld and other senior officials in the Bush administration. Even in the case of Abu Ghraib, it shows step-by-step how directions given by Rumsfeld that the harsh techniques he adopted for Guantánamo be imported to Iraq, specifically for use on high-value detainees at the Abu Ghraib facility. Among the 232-page report’s conclusions: “The abuse of detainees in U.S. custody cannot simply be attributed to the actions of ‘a few bad apples’ acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees.<br /><br /><!--</li--></li> <li><em>The torture techniques were derived as a last resort, only after other techniques had failed and that interrogators in the field pushed for their use.</em><br /><br /> The report shows, however, that the effort to identify and seek authority to use harsh new techniques started shortly after 9/11—that is, in 2001, well before there were any prisoners on whom they could be used. It also shows that the effort had its origin in the White House, specifically in the office of Vice President Cheney and involved a series of persons who had Cheney’s confidence.<br /><br /> Conversely, the report and other documents emerging since its release shows that interrogators in the field raised sharp objections to the use of the techniques and steadily questioned their efficacy. The team dealing with one prisoner, for instance, voiced the view that he had already furnished all the evidence he was likely to produce and that further waterboarding would be pointless. Nameless “higher-ups” overrode their judgment. That group might well include Cheney, who is known to have maintained a sharp interest in this particular detainee and kept on his desk a file marked “detainees” in which he collected data related to the use of torture. The Senate report documents a series of military officers who raised objections against the use of torture and insisted that their opposition be recorded. And today <a target="_blank" href="http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042403171.html">a further report</a> has emerged from July 2002 (just as the OLC memos were being commissioned), in which the military’s Joint Personnel Recovery Agency (JPRA) expressly referred to the techniques which were being reverse engineered from the SERE program (that JPRA oversaw) as “torture” and insisted that if used they would not produce reliable intelligence.<br /> </li> <li><em>Bush lawyers may have made “honest mistakes” in their legal analysis owing to the extreme pressure that existed in the immediate wake of 9/11, in which they were pressed quickly to give opinions before matters could be fully evaluated.</em><br /><br /> One of Bush’s OLC chiefs, Jack Goldsmith, makes the argument, now accepted as a mantra-like defense for the Bush-era torture lawyers, that tremendous pressure and short deadlines were to blame for their failure to properly assess the law. The torture memoranda gave seriously faulty analysis of the law, Goldsmith claims, because of this pressure-cooker environment. We should all be prepared to excuse their lapses for this reason. Goldsmith is not the most objective analyst of the question, and his adamant insistence that he was divorced from the process of giving a green light to torture appears less persuasive as time passes. But the writings of the torture memo writers, particularly of John Yoo, look suspiciously like their academic writing, in which they sought to expand presidential power and authority at the expense of the rights of the other branches. It seems more plausible to conclude just the opposite of Goldsmith’s claims, namely, that they seized upon the crisis that arose in the wake of 9/11 as an opportunity in which they could realize their ideas about limitless presidential powers in wartime.</li></ol><p><strong><em>The Emerging Reality</em></strong></p><ol><li><em>The impulse to torture had a clear motivation: Cheney and Rumsfeld were increasingly desperate to find evidence that would support their decision to invade and occupy Iraq.</em><br /><br /> The push for application of torture techniques occurred as the Bush administration scrambled to come up with evidence to support its claims that Iraqi dictator Saddam Hussein had links to Al Qaeda or was pursuing the development of Weapons of Mass Destruction (WMD). Two major spikes in the use of the harshest techniques occurred in the weeks just before the Iraq invasion and the couple of months after the occupation of Iraq had begun. The first spike coincides with a period of difficulty with America’s principal ally, Britain, shortly following the famous Washington meeting between President Bush and Prime Minister Tony Blair in which the latter expressed concern about the lack of evidence supporting claims about a WMD program. Blair had been informed by his attorney general, Lord Peter Goldsmith, that the legal case for invading Iraq was exceedingly tenuous and badly needed to be bolstered with evidence showing an imminent threat coming out of Saddam Hussein’s Iraq. Also in this period, Vice President Cheney was doing his best to make this case by talking up evidence that proved specious—including reports of a meeting in Prague between an Al Qaeda figure and an Iraqi diplomat.<br /><br /> The new documents make plain that interrogators using the new harsh techniques, including waterboarding, were pushing their subjects for information that would justify the Iraq War. For instance, Major Paul Burney, a medical professional attached to interrogation efforts at Guantánamo, <a target="_blank" href="http://documents.nytimes.com/report-by-the-senate-armed-services-committee-on-detainee-treatment#pr">told investigators</a> that “we were there a large part of the time we were focused on trying to establish a link between Al Qaeda and Iraq and we were not being successful in establishing a link between Al Qaeda and Iraq. The more frustrated people got in not being able to establish this link… there was more and more pressure to resort to measures that might produce more immediate results.” Numerous other sources involved in the interrogation effort recorded the same intense pressure to secure “results” that would justify a decision that had already been taken in Washington to invade Iraq.<br /><br /> In the end, Secretary of State Colin Powell was sent to the United Nations to make the case for an invasion of Iraq. The crown jewel of his evidentiary case turned on claims supplied by Ibn al-Shaykh Al-Libi that Saddam Hussein had trained Al Qaeda operatives in the use of chemical weapons. Al-Libi had been tortured using the new techniques to secure this evidence. It was subsequently determined to be false—offered up by Al-Libi to escape the torments to which he was subjected with the full understanding that this was what his interrogators wanted to hear. By curious coincidence, as Powell delivered his speech to the UN Security Council, a Judiciary Committee hearing room emptied out, and the nominee then under consideration got a free pass to confirmation to a lifetime appointment on the federal bench. His name was Jay Bybee, and more than a year later the public would learn that he had been a principal author of the torture memoranda.<br /><br /> The new reports make clear that torture was used to secure information to justify the invasion of Iraq, but—just as experts from the military and the FBI warned—the information proved false. America’s credibility on the international stage was seriously damaged as a result.<br /><em><br /></em></li> <li><em>The torture trail started and ended in the White House.</em><br /><br /> The Bush administration went to great lengths to fabricate a narrative under which it agreed to demands from interrogators on the ground to allow the use of harsher methods, effectively “removing the shackles” on their interaction with prisoners. But the Senate Armed Services Committee report shows that the effort to introduce these techniques dates from 2001, before there were any prisoners. It also shows that these techniques emanated from the White House and specifically from the office of Vice President Cheney. Finally, it documents a protocol that was in effect governing the use of the techniques. Interrogators would propose a full program of torture techniques to be applied to an individual prisoner. This proposal would be vetted and approved by higher-ups in the CIA (including the senior CIA officials who, not coincidentally, vehemently opposed disclosure of information surrounding their own engagement), and then it would go to the White House where discussions occurred in the National Security Council. Formal sign-off occurred by National Security Adviser Condoleezza Rice, involving her lawyer, John Bellinger. President Bush and Vice President Cheney are also recorded as having been informed and having approved its use. If the torture story is therefore a tale involving a “handful of bad apples,” then, the “bad apples” were sitting at the very top of the government.</li> <!-- pagebreak --> <li><em>Experts advised the administration lawyers that their opinions on torture were wrong and possibly criminal in nature and the lawyers attempted to destroy evidence of this fact.</em><br /><br /> Contrary to the uninformed assertion of <a target="_blank" href="http://www.washingtonpost.com/wp-dyn/content/article/2009/04/24/AR2009042402902.html">Washington Post columnist David Broder</a> that the “memos on torture represented a deliberate, and internally well-debated, policy decision, made in the proper places,” the newly released documents are filled with evidence that military law experts and others repeatedly warned the Bush administration, and particularly its lawyers, that the techniques which were being introduced constituted torture and that torture was a federal crime, punishable with penalties up to capital punishment in cases in which death occurred (and it did). This helps explain why White House counsel Alberto Gonzales, in a memorandum advising President Bush to issue a determination that the Geneva Conventions did not apply, presented his fear that prosecutors in the future might bring war crimes charges against Bush administration officials (a presidential determination that Geneva did not apply would make it more difficult for the prosecutors to make their case, Gonzales reasoned).<br /><br /> In addition, a senior military lawyer tells me that he directly confronted one of the torture memo writers advising him that the techniques proposed would be viewed by most experts as criminal in nature. He insisted that the memo be rewritten to reflect this risk. But the memo writer refused, he states. Phillip Zelikow, a senior counselor to Condoleezza Rice at the State Department, also <a target="_blank" href="http://shadow.foreignpolicy.com/posts/2009/04/21/the_olc_torture_memos_thoughts_from_a_dissenter">described a memorandum he wrote</a> warning of risks associated with the torture memoranda. He explained last week that an extraordinary effort was launched by the Bush White House to round up and destroy all copies of his memo. Prosecutors would probably characterize all of this as reflecting mens rea—a state of guilty mind—a realization by the torture memo writers that they were engaged in a criminal act.</li></ol><p>Why did the memo writers issue their opinions in the form that they did without signaling the risks of criminal law involved in the scheme that the White House was implementing? It’s likely that they were acting under instructions to issue “clean opinions,” which would make it easier for the White House to act and provide more effective insulation from criminal prosecution to those who received the memos. Note that both President Bush and Vice President Cheney went out of their way in their exit interviews to claim that they made their decisions in reliance on the advice of their lawyers.</p><p>The new disclosures have transformed the parameters of the debate. The Bush administration’s claims that “we do not torture” and that the problems associated with photographs from Abu Ghraib were all related to a “few bad apples” have collapsed. The fall back position urged with increasing vigor by Dick Cheney and Karl Rove is simple and includes both offensive and defensive elements. The critical top note is that torture works and keeps America safe. Cheney repeats this claim at every public appearance. He argues that the key to the Bush Administration’s avoidance of any further attacks on the United States after 9/11 was the reach to torture techniques. He claims that these techniques yielded information that allowed the U.S. to thwart attacks. But Cheney has been extremely slippery about the details of these claims.</p><p>Cheney has also filed papers with the National Archives seeking the declassification and disclosure of two CIA reports, which he notes are in a file from his office marked “Detainees.” Curiously, neither report dates from the period of heavy use of torture techniques like waterboarding—they are from a subsequent period in which information gained is probably being crunched or evaluated in an effort to prove that the application of torture yielded something useful. Critics object to Cheney’s request, but they don’t object to disclosure of information about the fruits of the program. They argue that Cheney cannot be allowed to cherry-pick the evidence as he did with intelligence relating to the Iraq War. Instead, they argue, there should be a comprehensive study of the question that reaches some results—perhaps best in the form of a commission of inquiry like the one that the congressional judiciary committee chairs, John Conyers and Patrick Leahy, have proposed.</p><p><!-- pagebreak -->Rove’s counterattack takes a different form. He argues, using formulations that instantly reverberated though the airwaves as dozens of Republican commentators took them up, that any effort at accountability would be a primitive act of retribution. Appearing on Sean Hannity’s show on Fox News, Rove <a target="_blank" href="http://crooksandliars.com/david-neiwert/hearing-footsteps-rove-freaks-out">invoked</a> the image of “Latin American colonels in mirrored sunglasses,” claiming that any effort to investigate breaches of law would be a “criminalization of an honest policy dispute” that would undermine the fabric of American democracy.</p><p>The imagery used by Rove is particularly jarring because in fact there is a broad sense that the age of dictators in mirrored sunglasses in Latin America is passed, and key to the triumph of democracy in the hemisphere was a firm move towards the accountability of heads of state. Since 1990, 68 heads of state have faced criminal prosecution in roughly forty countries, as noted in <em><a target="_blank" href="http://www.amazon.com/Prosecuting-Heads-State-Ellen-Lutz/dp/0521756707">Prosecuting Heads of State</a>,</em> a new book just published by Cambridge University Press. These prosecutions have demonstrated the maturity and stability of democratic systems and have helped guard the hemisphere’s democracies against extralegal overreaching by heads of state. Indeed, the most striking single case cited is the just concluded prosecution of former Peruvian President Alberto Fujimori. Confronting the terrorism of a Maoist group called Sendero Luminoso, Fujimori authorized widespread torture, extralegal detentions, the use of military tribunals to try civilians, and the “disappearings” of hundreds of Peruvians. After an extended trial, Fujimori was sentenced to 25 years in prison for his crimes. The case is viewed inside Peru as a landmark triumph of the rule of law.</p><p>President Obama and his advisors have reacted to these disclosures through a series of unconvincing gyrations. It is clear that Obama’s principal concern throughout this process has been that the controversy surrounding torture will prove a distraction that might encumber his efforts to push through an ambitious agenda including financial industry reform, bailouts, health care reform and an array of foreign policy initiatives. While Obama came though on an election campaign promise to honor Freedom of Information Act requests by publishing previously classified government materials dealing with torture, he has also sought to dampen public reaction. But his steps have been ham-handed. On the question of possible prosecutions, Obama went to the CIA to deliver public assurances that no intelligence officers who relied on government legal opinions would be investigated or prosecuted for what they did. Shortly thereafter, his chief of staff, Rahm Emanuel and press secretary, Robert Gibbs, announced that there would be no prosecution of legal memo writers or policy makers either—steps violating clear-cut rules about the involvement of White House political figures in criminal justice matters. The White House was forced to pull back the next day, insisting that the Justice Department would handle these questions.</p><p>Obama mishandled calls for a commission of inquiry into the torture question in the same way. First he signaled that he would sign legislation creating a commission if it reached his desk. Then, forty-eight hours later, in a meeting with Senate Majority Leader Harry Reid, he signaled he would oppose such an effort. In the days that followed, White House spokesmen attempted to reconcile and explain the conflicting statements.</p><p>Obama insists America must “look forward.” He views the torture question as resolved by a series of orders he issued coming into office. But Cheney and Rove suggest another idea. It’s clear that in their view America is just one more 9/11 attack away from a transformation in which their use of the “dark arts” will again carry popular endorsement and provide a powerful wedge issue to use against Obama. Obama’s optimism about closure on the torture issue may therefore be seriously misplaced.</p> <!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
<div class="field field-name-field-bio field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even"> <!--smart_paging_autop_filter-->Scott Horton is a law professor and writer on legal and national security affairs for Harper's Magazine and The American Lawyer, among other publications. </div></div></div>Mon, 27 Apr 2009 21:00:01 -0700Scott Horton, The Daily Beast655196 at http://www.alternet.orgHuman RightsHuman Rightspoliticsiraqciatortureal qaedadick cheneyafghanistanbush administrationkarl roveguantanamoabu ghraibgeorge bushbarack obamajohn mccainwmddonald rumsfeldcriminaljustice departmentwaterboardingdefense departmentscott hortonjohn yooprosecutionsgeorge w bushjay bybeeserepeggy noonanoffice of legal counseltorture memosscott horton daily beastjack goldsmithalberto fujimorijohn warner and lindsey gmyth and reality about totorture prosecutionsjustice department officelord peter goldsmithmajor paul burneyRepublicans in Desperation Over Obama Releasing More Bush Torture Memoshttp://www.alternet.org/story/135582/republicans_in_desperation_over_obama_releasing_more_bush_torture_memos
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">If the president releases more Bush torture memos, Republicans are promising to &quot;go nuclear&quot; and filibuster his legal appointments.</div></div></div><!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
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<!--smart_paging_autop_filter--><p>Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.</p><p>Barack Obama entered Washington with a promise of transparency. One of his first acts was a presidential directive requiring that the Freedom of Information Act, a near dead letter during the Bush years, was to be enforced according to its terms. He specifically criticized the Bush administration’s practice of preparing secret memos that determined legal policy and promised to review and publish them after taking office.</p><p>But in the past week, questions about Obama’s commitment to transparency have mounted. On April 2, the Justice Department was expected to make public a set of four memoranda prepared by the Office of Legal Counsel, long sought by the American Civil Liberties Union and other advocacy organizations in a pending FOIA litigation. The memos, authored by then-administration officials and now University of California law professor John Yoo, federal appellate judge Jay Bybee and former Justice Department lawyer Stephen Bradbury, apparently grant authority for the brutal treatment of prisoners, including waterboarding, isolated confinement in coffin-like containers, and “head smacking.” The stakes over release of the papers are increasingly high. Yoo and Bybee are both targets of a criminal investigation in a Spanish court probing the torture of five Spanish citizens formerly held in Guantánamo; also named in the Spanish case are former Attorney General Alberto Gonzales and three other Bush lawyers. Legal observers in Spain consider the Bush administration lawyers at serious risk of indictment, and the memos, once released, could be entered as evidence in connection with their prosecution. Unlike the torture memos that are already public, these memos directly approve specific torture techniques and therefore present a far graver problem for their authors.</p><p>The release of the memos that the Senate Republicans want to suppress was cleared by Attorney General Eric Holder and White House counsel Greg Craig, and then was stopped when “all hell broke loose” inside the Obama administration, according to <a target="_blank" href="http://www.newsweek.com/id/192314" linkindex="16">an article</a> by <i>Newsweek</i> reporter Michael Isikoff. <i>Newsweek</i> attributes internal opposition to disclosure of the Bush-era torture memos to White House counterterrorism adviser and former CIA official John O. Brennan, who has raised arguments that exposure of the memoranda would run afoul of policies protecting the secrecy of agency techniques and has also argued that the memos would embarrass nations like Morocco, Jordan, Pakistan, Tunisia and Egypt, which have cooperated closely with the CIA in its extraordinary renditions program. Few informed independent observers, however, find much to credit in the Brennan objections because the techniques are now well-known, as is the role of the cooperating foreign intelligence services—any references to which would in any event likely be redacted before the memoranda are released. Moreover, the argument that the confidence of those engaged in torture—serious criminal conduct under international and domestic law—should be kept because they would be “embarrassed” if it were to come out borders on comic.</p><p>The Justice Department source confirms to me that Brennan has consistently opposed making public the torture memos—and any other details about the operations of the extraordinary renditions program—but this source suggests that concern about the G.O.P.’s roadblock in the confirmation process is the principle reason that the memos were not released. Republican senators have expressed strong reservations about their promised exposure, expressing alarm that a critique of the memos by Justice’s ethics office (Office of Professional Responsibility) will also be released. “There was no ‘direct’ threat,” said the source, “but the message was communicated clearly—if the OLC and OPR memoranda are released to the public, there will be war.” This is understood as a threat to filibuster the nominations of Johnsen and Koh. Not only are they among the most prominent academic critics of the torture memoranda, but are also viewed as the strongest advocates for release of the torture memos on Obama’s legal policy team.</p><p>A Republican Senate staffer further has confirmed to me that the Johnsen nomination was discussed at the last G.O.P. caucus meeting. Not a single Republican indicated an intention to vote for Dawn Johnsen, while Senator John Cornyn of Texas was described as “gunning for her,” specifically noting publication of the torture memos.</p><p>No decision was taken at that Republican caucus meeting whether to filibuster or not, though Cornyn was generally believed to support filibustering Johnsen and potentially other nominees. Johnsen has met recently with moderate Republican Senators Susan Collins of Maine and Arlen Specter of Pennsylvania, both of whom are being lobbied heavily by colleagues and religious right groups to oppose her nomination.</p><p>Both Koh and Johnsen are targets of sustained attacks coming from right-wing lobbying groups. The Daily Beast <a href="http://www.thedailybeast.com/blogs-and-stories/2009-03-26/partisan-war-breaks-out/" linkindex="17">previously reviewed</a> the attacks on Johnsen, while Slate’s Dahlia Lithwick <a target="_blank" href="http://www.slate.com/id/2215142/" linkindex="18">has catalogued</a> the recent attacks on Koh. Former Bush administration Solicitor General Ted Olson <a target="_blank" href="http://theplumline.whorunsgov.com/political-media/gop-legal-heavy-ted-olson-dismisses-right-wing-assault-on-obama-nominee/" linkindex="19">recently endorsed</a> the Koh nomination, calling the Yale dean “a man of great integrity.” But connecting the Obama nominations to the Bush torture memos escalates the conflict toward a thermonuclear level.</p> <!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
<div class="field field-name-field-bio field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even"> <!--smart_paging_autop_filter-->Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and The American Lawyer, among other publications. </div></div></div>Wed, 08 Apr 2009 21:00:01 -0700Scott Horton, The Daily Beast654837 at http://www.alternet.orgHuman RightsHuman Rightsgopsenateobamatorture memosThe Woman Who Could Nail Bush: Are the Worst of the Torture Memos Still to Come?http://www.alternet.org/story/134001/the_woman_who_could_nail_bush%3A_are_the_worst_of_the_torture_memos_still_to_come
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<div class="field field-name-field-teaser field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The GOP is threatening an ugly fight over an Obama Justice Department appointee who wants to disclose more Bush-era torture memos.</div></div></div><!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
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<!--smart_paging_autop_filter--><p>Until recently, the Justice Department’s Office of Legal Counsel, often considered the “brains” of the department, has been known mostly to legal experts. But for the past eight years, it was the epicenter of allegations of political manipulation and, worse, the source of infamous memoranda on torture. In tapping Eric Holder as attorney general, President Obama has promised to restore standards of professionalism to the department. For Republicans, this is tantamount to a declaration of partisan war.</p><p>On March 19, the nomination of Indiana University law professor Dawn Johnsen to head the OLC was endorsed by the Judiciary Committee with every Republican voting against her and Sen. Arlen Spector (R-PA) abstaining. The nomination was to have been brought to the Senate floor for a vote on Monday and then again on Wednesday, but it has been held back. Republican leaders, it appears, are playing with the notion of making Johnsen the target of their first filibuster.</p><p>The highly credentialed Johnsen is an improbable target, and OLC was long viewed as an obscure post. But Johnsen served as a lawyer for the American Civil Liberties Union and the National Abortion &amp; Reproductive Rights Action League. Antiabortion groups have targeted Johnsen over the last three weeks with a massive telephone, email, and letter-writing campaign, demanding that senators oppose her nomination. Johnsen is labeled a “radical, pro-abortion activist,” although her views on the abortion issue line up very closely with the mainstream. While the noise surrounding the Johnsen nomination appears on the surface to be about the abortion issue—over which her position at OLC would have very little influence—discussions with Republican stalwarts reveal that their main concerns lie elsewhere.</p><p>The real reason for their vehement opposition is that Johnsen is committed to overturning the Bush administration’s policies on torture and warrantless surveillance, which would clip the wings of the imperial presidency. Even more menacingly (from their perspective), she is committed to shining a light on some of the darkest skeletons of the Bush years. Already, publication of OLC memoranda authorizing torture, approving warrantless surveillance, and pronouncing the First and Fourth Amendments a dead letter in connection with domestic military operations has rocked the public. More memos, potentially even more disturbing, I have learned, are about to be made public soon. Yet these are difficult issues on which to attack Johnsen, other than through vague suggestions that she is “weak on national security.” Hence the steady stream of accusations linked to her largely irrelevant views about abortion rights.</p><p>Will the Republicans attempt to filibuster the Johnsen nomination? The threat is sufficiently serious to have provoked the editors of the New York Times to editorialize in support of Johnsen on Thursday. Calling the operation of OLC in the Bush era “lawless,” the <a target="_blank" href="http://www.nytimes.com/2009/03/26/opinion/26thu3.html" linkindex="16">editors wrote</a>, “Ms. Johnsen is superbly qualified and has fought for just the sort of change the office needs.”</p><p>The controversy surrounding Johnsen provides a flashpoint for President Obama’s nominees for administration legal posts. Unsurprisingly, they look an awful lot like Barack Obama—strong legal credentials, an academic bent, and liberal attitudes balanced by a strong commitment to political pragmatism.</p><p>Obama’s top picks start with a couple of well-known Washington names. Eric Holder, the nation’s first black attorney general, was a career Justice Department attorney who spent his formative years as a prosecutor in the department’s Public Integrity Section (much-criticized for abuse under Bush). He spent time as a U.S. attorney, a judge, and ran the Justice Department for a while as deputy attorney general in the Clinton years. Obama’s White House counsel, Greg Craig, is a Washington fixture at the powerhouse Williams &amp; Connolly law firm. The former foreign-policy aide to Sen. Edward Kennedy and State Department official has handled high-profile cases from Clinton’s impeachment defense to representing the father of Elian Gonzales. In the way of Washington, he is also has ties to powerful Republicans, including Karl Rove and Alabama Sen. Richard Shelby, whom he successfully represented in a sensitive FBI investigation into the leaking of classified data.</p><p>But delving deeper into the list, the names are less known for pragmatic politics and inside-the-Beltway experience than for pure intellectual firepower. Nearly a quarter of all Obama nominees have a Harvard degree. No fewer than 11 Harvard Law School faculty members drew appointments in the Obama team, including the dean, Elena Kagan, who was also deputy domestic-policy adviser to President Clinton. He also tapped Yale’s law-school dean, Harold Koh, widely thought to be a possible Supreme Court appointment, to serve as the principal lawyer at the State Department. Obama has mined the University of Chicago, the University of Michigan, and Georgetown. All these schools are being forced to scramble as professors announce the cancellation of classes and prepare to depart for Washington.</p><p>A scan of the names involved makes clear that Obama is not looking for any particular ideological line—the candidates tapped range from centrist conservatives to traditional liberals. But he clearly is seeking individuals highly regarded by their peers who are on top of the issues for which they will have responsibility.</p><p>The trio of appointments Obama announced for the OLC underscores this point. In addition to Johnsen, Obama chose Harvard law professor David Barron and Georgetown law professor Marty Lederman as her two deputies. The three nominees have similar histories. Each served in the OLC in prior administrations before departing for academia. And over the last eight years, each spent a good deal of time and energy studying and criticizing the conduct of the OLC in the Bush years. Barron and Lederman co-authored a highly regarded two-part historical study of presidential powers, which demolished the underpinnings of the most significant OLC memoranda authored by John Yoo, including the famous torture memorandum. The three may well have been the Bush OLC’s most vocal critics, highlighting its departure from traditions and practices of earlier administrations. All three were also sharply critical of the Bush team’s devotion to secrecy in the formation of legal policy. It is therefore unsurprising that the Obama team has moved very quickly to publish the previously secret opinions that their Bush predecessors issued and to overturn those decisions. It would be hard to identify three lawyers more knowledgeable about the subject than Johnsen, Barron, and Lederman.</p><p>In the coming two weeks, their push for transparency will result in the publication of more Bush-era OLC memos, including the specific approvals granted for waterboarding, extended isolation, and other torture techniques—memos that the Bush administration has sought to keep secret. Former CIA Director Michael Hayden and Obama adviser John Brennan are said to have “gone to the mat” to keep the opinions secret, but Obama sided with his designated OLC team and upheld the decision to declassify and publish them.</p><p>Harvard law professor Laurence Tribe, one of the nation’s leading constitutional scholars and Supreme Court advocates, and Obama’s former teacher, is often mentioned as an adviser in the background, a gray eminence, counseling Obama on appointments and policy choices. He is widely believed to covet an appointment to the Supreme Court, though, at 67 years old, he might be passed over for a younger person. While Tribe is a regular target of the right and closely connected to an array of liberal causes, those familiar with his role in the recent appointments process say that he has steadily advised Obama to avoid ideological confrontations and stressed pragmatism as an important quality for appointees.</p><p>Another legal academic said to figure in Obama’s inner circle is Harvard law professor Cass Sunstein, who until recently was a colleague of Obama’s at the University of Chicago Law School. Sunstein has been appointed to head the White House Office of Information and Regulatory Affairs, while his wife Samantha Power, a Pulitzer Prize-winning author, serves as chief on the National Security Council as head of international organizations. Sunstein is associated with the notion of judicial minimalism, arguing that decisions should be taken on the narrowest possible case-specific grounds so as to preserve a broader range of options in future cases. The executive orders that Obama issued in his first two days in office were widely seen as following Sunstein’s minimalist approach in confronting a range of national-security issues on which Obama has pledged changes.</p><p>Unlike Obama, a professor of law, George W. Bush was noted for a sharp disdain for lawyers. He liked to make disparaging jokes about attorneys in pinstripes and tasseled loafers. “I don’t care what the international lawyers say, we are going to kick some ass,” he barked as the war on terror got under way, according to former counterterrorism chief Richard Clarke. Through the Bush administration, appointment to high-level legal positions was usually a reward for faithful service—as personified by Alberto Gonzales, who as counsel to the president and attorney general arguably held the two most powerful legal posts. Gonzales’ entire career, as a partner at the prestigious Houston firm of Vinson &amp; Elkins, in Texas state government, and finally in Washington, was marked by service to a single client: George W. Bush.</p><p>The Bush administration’s overriding concern was for political loyalty. It demanded individuals who would unquestioningly implement the White House’s directives. The notion of independent professional judgment was derided as counterproductive at best and a cloak for liberal activism at worst. To that end, selecting the best and the brightest was not advisable. Where prior administrations looked for the top graduates from the nation’s elite law schools, the Bush team scoured schools not found in a list of the top-100 law schools (and sometimes not even ABA-accredited), but with strong ties to the religious right and the Republican Party. Justice Department officials openly asked job candidates whether they had worked for the Bush-Cheney campaign and contributed money and quickly rejected those whose offense was support for John McCain in the 2000 Republican primaries. Membership in the movement's conservative legal organization, the Federalist Society, was also a plus if not essential—in recently disclosed emails, former Bush-era U.S. attorney and Civil Rights Division Director Bradley Schlozman (whose case is now under review for the possible filing of criminal charges) called them “ideological comrades.” The result was a Justice Department filled with political hacks in appointed positions and a historically unprecedented level of politicization in its decision-making process.</p><p>The Obama nominees, presenting the sharpest possible contrast, have drawn sputtering fire from Republicans in Congress and have come under broad attack from religious-right leaders who previously had strong influence in Justice Department picks. Dawn Johnsen is an interesting test case. If the Republicans opt for a filibuster or move to line up a unanimous GOP vote in opposition, it will be a shot across the bow of the Obama Justice Department.</p> <!-- All divs have been put onto one line because of whitespace issues when rendered inline in browsers -->
<div class="field field-name-field-bio field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even"> <!--smart_paging_autop_filter-->Scott Horton is a law professor and writer on legal and national-security affairs for Harper's magazine and the American Lawyer, among other publications. </div></div></div>Sun, 29 Mar 2009 21:00:01 -0700Scott Horton, The Daily Beast654602 at http://www.alternet.orgHuman RightsHuman Rightsbarack obamaalberto gonzaleswarrantless wiretappingscott hortoncass sunsteineric holderoffice of legal counseldawn johnsenscott horton daily beastobama lawyerstorture memoirsdawn johnsen nominationdawn johnsonarlen spectorlaurence tribelarry tribelaurence tribe supreme co